Corte v. State

• Citation: 630 S.W.2d 690
• Decision Date: 31 December 1981
• Docket Number: No. 01-81-0236-CR,01-81-0236-CR
• Parties: Carl Thomas CORTE v. The STATE of Texas. (1st Dist.)
• Court: Texas Court of Appeals

Page 690

630 S.W.2d 690

Carl Thomas CORTE v. The STATE of Texas.

No. 01-81-0236-CR.

Court of Appeals of Texas, Houston (1st Dist.).

Dec. 31, 1981.

Rehearing Denied March 18, 1982.

Frank Follis, Houston, for appellant.

James C. Brough, Asst. Dist. Atty., Houston, for appellee.

Before WARREN, DUGGAN and PRICE, JJ.

DUGGAN, Justice.

This is an appeal from a conviction for aggravated robbery; punishment, enhanced by proof of prior convictions, was assessed by the jury at life in the Texas Department of Corrections.

On August 27, 1980, at approximately 4:30 P.M., appellant and a confederate entered South Houston Pharmacy in South Houston, Texas, at a time when the complainant, who was the store's pharmacist, and one other store employee were the only persons present. Appellant walked to the counter, pointed a gun wrapped in a paper sack at complainant, and threatened to "blow your f g head off" if the complainant did not give him all of his drugs. The confederate, in the meantime, held the store employee on the floor at knife-point. When a customer entered the store and diverted the appellant's attention, the complainant grabbed the gun, threw it out of reach and wrestled with both appellant and the confederate, who had released the store employee in order to help appellant. The confederate ran out of the store and drove away, but the complainant continued to fight with appellant until police, summoned by the store employee, arrived at the scene. Police recovered the gun, which was found to be an unloaded CO2 pellet gun. Appellant appeals on two grounds of error.

By his first ground of error, appellant alleges that the evidence is insufficient to establish the gun as a "deadly weapon." Texas Penal Code Sec. 1.07(a)(11), V.T.C.A., defines a deadly weapon as:

(A) a firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury; or

(B) any thing that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Thus an item could be considered as a deadly weapon under one of three grounds: (1) a firearm; (2) something manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury; or (3) something that by its use or intended use is capable of causing death or serious bodily injury. As for the latter two grounds, a showing of a capability to inflict or purpose of inflicting death or serious bodily injury is necessary.

The CO2 pellet gun in question was specifically stated in the State's evidence not to be a firearm, and it is not argued on this appeal to be a firearm. Thus, to be a deadly weapon, the gun must either be "manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury," or be "in the manner of its use or intended use capable of causing death or serious bodily injury."

In urging that the subject gun is not a deadly weapon, appellant relies on the case of Mosley v. State, 545 S.W.2d 144 (Tex.Cr.App.1976). In Mosley, the defendant had pointed a B-B gun at a woman; however, the court noted it had not been loaded, and had not been pointed at the woman's face or used as a bludgeon. The State's expert witness had also testified that the B-B gun's projectile could not penetrate skin, but probably could cause loss of sight if a person were shot in the eye. The court concluded, in light of the evidence, that the gun was not a deadly weapon in that it was not designed, made or adapted for the purpose of inflicting serious bodily injury.

Although here, as in Mosley, the CO2 pellet gun was found unloaded and was not used as a bludgeon, so that it cannot be said that it was capable of causing serious bodily injury in the manner of its use or intended use, other pertinent evidence significantly differs from that adduced in Mosley. The witness John Ray Harrison, senior criminal investigator for the Harris County District Attorney's Office, testified that in his opinion, based upon his knowledge and familiarity with that type of weapon, the gun, when loaded, was capable of inflicting serious bodily injury. The present case more closely parallels Campbell v. State, 577 S.W.2d 493 (Tex.Cr.App.1979), where the gun involved was capable of inflicting serious bodily injury and was designed for that purpose. See also Walker v. State, 543 S.W.2d 634 (Tex.Cr.App.1976), where a pistol, even though missing a firing pin and found without a clip following a robbery, was held to be manifestly designed and made for the purpose of inflicting serious bodily injury. We hold the CO2 pellet gun here in question to be a deadly weapon; accordingly, the appellant's first ground of error is overruled.

In his second ground of error, appellant alleges that the trial court erred in not granting his motion to quash the indictment due to violation of the time requirements of the Speedy Trial Act, Art. 32A.02 Sec. 2, V.A.C.C.P.

The Speedy Trial Act, in pertinent part, states that:

Section 1. A court shall grant a motion to set aside an indictment, information, or complaint if the state is not ready for trial within ... 120 days of...